Careful analysis of the twenty-year-old federal experiment with structured sentencing suggests one overriding conclusion about the design of sentencing systems: a sentencing system that sensibly distributes power--both the power to make sentencing rules and the power to determine sentences in particular cases--among the institutional sentencing actors is likely to work pretty well. Conversely, a system that concentrates sentencing power disproportionately in the hands of one or even two institutional sentencing actors is headed for trouble. The federal sentencing experience of the past three decades is a case study in Madisonian political theory. It demonstrates that a governmental system that fails to erect a properly conceived set of checks and balances against the inevitable tendency of political actors toward personal and institutional self-aggrandizement is prone to degenerate into a despotism of the most powerful branch or, as Madison particularly feared, into an alliance of two branches against the third.

The current federal sentencing regime, with its Sentencing Commission and complex Guidelines, was intended to insulate the process of making sentencing rules from the passions of politics. But as we will see, the architects of the system miscalculated and created a sentencing structure almost perfectly designed for capture and manipulation by the political branches. The existence of this structure in combination with a variety of other factors has produced a time machine. Not an H.G. Wells time machine that travels in the fourth dimension, but a machine whose only product is incarcerative time, a machine controlled by a so-far indissoluble alliance between Congress and the Justice Department...

 

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